Justice lawyers say House can’t sue Trump over emergency declaration for wall

Department of Justice lawyers argued in a D.C. court Thursday that the House doesn’t have the ability to sue the administration as they sought to block Democrats’ lawsuit challenging President Trump’s ability to use military funds to build a border wall under his national emergency declaration.

The Democratic-controlled House filed suit against the Trump administration last month after the president declared a national emergency to shift funds toward building a wall at the southern border. 

{mosads}The lawsuit doesn’t challenge the national emergency itself, but rather the transfer of the military funds toward constructing a border wall.

House Democrats have argued that only Congress has the constitutional authority to appropriate funds, and that using money meant for military projects to build a wall violates the separation of powers.

During the first 90 minutes of the roughly three-hour hearing, District Judge Trevor McFadden heard arguments from both parties on whether the courts should even play a role in the fight between Congress and the administration on the border wall funding. 

James Burnham, a deputy assistant attorney at the Justice Department, said that the “Constitution nowhere even hints at inter-branch litigation” and that for 200 years, officials “resolved political disputes through political means.”

When McFadden, who indicated throughout the proceedings that he was concerned over whether he should even be ruling on a dispute between the executive and legislative branches, asked him whether that means the House would never have the ability to sue the administration, Burnham replied, “Yes.”

Douglas Letter, the general counsel for the House, argued that it’s well within the courts’ rights to make a ruling. He said that in the past, the Supreme Court has found that judges can “tell the other two branches what the Constitution means.”  

“We cannot have the president appropriate money, in order to protect the liberty of U.S. persons,” he argued.

When McFadden, a Trump appointee, pressed Letter on whether the House had exhausted all of its other options to oppose the administration before filing the lawsuit, the attorney said that it had.

He pointed to lawmakers in both the House and Senate refusing to include Trump’s requested border security funding in appropriations bills as an implicit denial of funding to construct a border wall.

“Here we have a situation where the House did what the political weaponry told it to, not just the House but Congress,” Letter said.

Congress also passed a resolution opposing Trump’s emergency declaration, but Burnham said that the House’s argument was weakened by its failure to override Trump’s veto of that measure.

“Congress of plenty of tools it could use” to halt the transfer of funds, Burnham argued, “if it felt strongly enough.”

Trump issued the emergency declaration in January after agreeing to a funding bill to end a record 35-day government shutdown that didn’t include his requested amount of border security funds.

During the second half of Thursday’s hearing, McFadden heard arguments pertaining to whether he should issue a preliminary injunction to temporarily block the military funds from going toward the wall.

Letter claimed that lawmakers are being “irreparably harmed” because the money can’t be returned once it’s spent.

While Burnham acknowledged that the funds can’t be returned, he said that construction under the scope of the national emergency hasn’t fully begun yet. And he said the Defense Department has not formally determined how the reprogrammed funding will be used, so an injunction isn’t necessary at this time.

McFadden ended the proceedings without making a ruling, saying that he was taking the matter “under consideration.”

The hearing was held after House Democrats secured a pair of key legal victories this week, with two separate federal judges ruling that financial institutions can hand over Trump’s financial records to lawmakers investigating the president.

It’s unclear exactly how McFadden will rule. If he determines that House Democrats can’t sue the administration, the lawsuit could be tossed out — which lawmakers would likely appeal.